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The task of working through these paradoxes and separ- Downloaded by [University of Victoria] at 10 October ating improvisation from its mythic image falls on critical improvisation scholars. Justice as Improvisation adds to the above list the discipline of law. Improvised music has the potential for reshaping pos- sible relations among these materials of existence — knowing, commu- nity, instruments — in ways that can fundamentally inform and transform contemporary cultural debate. Heble and Siemerling 5; see also Fischlin and Heble 11 Musical improvisation is herein explored as a model for social change with a view to shaping political, cultural, and ethical dialogue and action.

Not further mystery or mystique, but a negotiation between abstract notions of justice and the everyday practice of judging. Improvisa- tion in judgment calls for ongoing, practical decision-making as the constant negotiation between the freedom of the judge to take account of the other- ness or singularity of the case and the existing laws or rules that both allow for and constrain that freedom. Yes, it is necessary to judge, yes, it is necessary to decide, but to judge well, to decide justly, that is a music lesson perhaps best taught by critical improvisation scholars.

Originally applying solely to chefs, waiters, dishwashers and the like, the regulations governing cabaret employees underwent reform in to include musicians and entertainers, who until the late s would be required to hold an ID card in order to work in a licensed cabaret club. These laws, though, were not beyond dispute or challenge, indicating that the opposition between law and improvisation can never be purely settled or determined.

Both authors are lawyers who, along with their musician clients, challenged the cabaret laws in their variant guises over the years: Cohen in the late s, Chevigny in the mid- s and then again in the mids. They both approach the subject from a civil libertarian stance, focusing on the rights of the musicians involved and the denigrating power of the cabaret system of regulation. Justice as Improvisation is not really about the NYC cabaret laws, though, and offers little novelty in this regard. From this case study, certain inevitabilities follow, such as a concentration on the improvised music of the bebop era.

To aid comprehension in this regard, the spectral guidance of Jacques Derrida is required. Instead, I will focus solely on a few concepts that are particularly relevant to a deconstructive reading of the singular and the general. Determinations of what is and what is not lawful remain under the control of the democratically elected legislature; police are employed to enforce these laws and courts adjudicate any alleged infractions or disputes over meaning Melody-thinking is holistic thinking, that is, thinking in temporal sound patterns and melodic lines as notes are sounding, keeping in mind the path already marked out and anticipating where it Downloaded by [University of Victoria] at 10 October will go next.

Eavesdropping

In music, the past, present, and future are related internally by the emerging melodic pattern. In the middle of its unfolding, the hearer projects the line on the basis of her memory of the partial sequence already fading into the past. The present and anticipated future of the melody alters its past. Equally, its focus on the future is from the threshold of past and present. At any point in the arc traced by the ratio decision-makers interact with decision-makers going before them and coming after them.

Both Derrida and CSI, however, force us to rethink the notion of improvisation as pure singularity and immediacy. Instead, improvisation, as CSI theorists continually underscore, retro- spectively develops and builds on its own history The third premise, or underlying aim, of Justice as Improvisation is the desire to reclaim the singular in and for law. A detailed accounting of the history of improvisation in relation to the NYC jazz scene in Chapter 4 hints at possible reasons behind this concealment.

Law must eschew all spontaneous or unpredictable ele- ments. This can be starkly contrasted to the prevailing perception of jazz as that which is founded solely upon pure spontaneous improvisation. Both conceptions are, when deconstructed, ultimately found wanting. Derrida thus reclaims the wildly singular as necessary for justice.

The openly responsive dimension of both law and improvisation, although never com- Downloaded by [University of Victoria] at 10 October plete or absolute, glances towards the singular other and keeps alive the possibility of creativity, ethics, democracy and justice, to which Chapter 7 will return. Although not without controversy, improvisation is frequently, almost instinctively, associated with creativity and innovation Postema There are already a great number of prescriptions that are prescribed in our memory and in our culture.

All the names are already preprogrammed. And there where there is improvisation I am not able to see myself. I am blind to myself. Accusations of negativity and nihilism are not new to Derrida, or to scholars who embrace his ideas. Instead, for Derrida, improvi- sation exists as the paradoxical mediation between the singular and the generalized recognition of said singularity, which is necessary for improvisa- tion to be recognized as such.

Deconstruction here is another name for crea- Downloaded by [University of Victoria] at 10 October tivity and inventiveness Derrida On that note, Justice as Improvisation proceeds as follows. Subsequent to this initial introductory chapter, Chapter 2 introduces the case study around which the book is structured. Its purpose is threefold. First, it establishes the positioning of law as general against a wildly singular improvisation through the NYC cabaret laws.

Action came in the form of the cabaret licensing laws. Having initially escaped regulation, musicians and performers were added to the employees covered under the regulations in Then, with control over these laws being transferred to the NYPD in , further paradoxes arose. For instance, as Chapter 2 describes, the Seabury Commission disclosed that many members of the police force were either active or silent partners in thousands of these clubs. This leads me to the third basis for the case-study approach.

Reform required the introduction of improvisation into law for change to occur. Although a concentrated focus on the case study fades with the closing of Chapter 2 although it does re-appear for brief consideration in Chapter 6 , its spectral presence haunts29 the remainder of the analysis.

Chapter 3 will move from the particular to the general through a Derridean reading of the aporetic relation between singularity and generality. Or so Goodrich begins his epitaph to the philosopher. Deconstruction is justice. He was indeed rigorous. He never got to talk about law, he never seemed to want to, he held off. Goodrich So, too, Derrida had nothing to say directly to musicians, especially jazz musicians, about music or improvisation, as Chapter 3 notes. To equate jazz so fully and inevitably with improvisation is not without its problems — not the least of which is the impoverished view, dominating the West, regarding the techniques of improvisation, which Chapter 5 details extensively.

Take bebop,35 for example. That solo and ensemble improvisation was central to bebop contributed to its wild formlessness. Intended here is the broadening of this per- spective through the work of critical improvisation theorists. Ultimately, it is the relationship between the singular and general delectations, which provide meaning and content to improvisation. Judicial precedent and discretion provide focus here. Notwith- standing the determinacy offered to law by the doctrine of stare decisis, freedom is imbued into its very essence. So too is the seeming illimitable freedom of legal discretion curtailed by the unpredictable.

Illustrated is that every judicial act comprises a complex and paradoxical Downloaded by [University of Victoria] at 10 October array of structured and free elements, of singularity and generality. Thus, Chapter 7 returns to Derrida in pursuit of the creative potential of deconstructive legal improvisation.

Improvising (Il)Legality: Justice and the Irish Diaspora, N.Y.C., 1930-32

The anticipated outcome of this synthesis is a recognition of the openly responsive dimension of improvisation, which, although never complete or absolute, glances towards the singular other and keeps alive the possibility of democracy, ethics, resistance and justice in society. Deconstruction as justice as improvisation, we might even say.

With these aims in mind, the closing section of the book applies the principles of improvisation to pre- cedent-sensitive judicial decision-making to offer some practical suggestions for making more visible the singular elements of law. Without failure, though, law would remain forever the same and there would be no need for law. Thus, if one takes anything from Justice as Improvisation, it is the following. A law that would not be a little bit wild and improvised would be no law at all Derrida a: Introduced in the Municipal Assembly on 17 June , its aim was to compel all nightclubs, cabarets and dance halls in the city to obtain licences and close between 3.

Alderman Murray Stand expressed his discontent, not as an Alderman, but as a private citizen: I am opposed to this bill … because it is a piece of discriminatory leg- islation. It permits certain persons to do things and denies that right to others. In our time we have condemned prohibition, but now we pro- pose to tell the people when they shall go to bed and when they shall stop spending their money. When did we get the right to set ourselves Downloaded by [University of Victoria] at 10 October up as censors of the morals of the people of this city? What right do we have to invoke the powers of the home rule law for that purpose?

Prior to voting, a report was submitted by the Committee on Local Laws, which gave the following reasons for the necessity of the cabaret laws: These night clubs or cabarets are simply dance halls, where food is served at exorbitant prices to the tune of jazz and tabloid entertainments. They are interested in speak-easies and dance halls and return to their native heaths to slander New York.

Favorable action is recommended. Republican Ruth Pratt, the lone woman on the Board of Estate and a local laws com- mittee member, made a similar point in An amusing report in the New York Times 19 May , for example, tells of Jack Bugler, the manager of the Footlight Club in NYC, who was arraigned on 18 May and charged with operating a cabaret without a licence. Greenberg and Slevin As pointed out by City Magistrate Scopas, in his retrospective exam- ination of the laws in the case of The People v.

It was mainly in Harlem that musicians played the jazz about which the Aldermen complained in the 7 December report see above Chevigny In early , Mayor Walker proposed a new curfew bill, a virtual redraft of the Local Law After he entered the room with the woman, the man plan- ted marked currency at a predetermined spot. Policemen then burst in and questioned the man. A bondsman pretending to be at the station by chance then offered to take her case. He obtained the keys to her home, retrieved her bankbook and attached himself to her account.

He posted bail for the stunned woman, who was released. A few days later, before the trial, the bondsman introduced the woman to a lawyer. The attorney instructed her to plead not guilty. Quinlivan and William M. Valentine However, according to Justice Pecora in the case of Friedman v. Further restrictions were required. First, for reasons unclear, the cards initially applied solely to chefs and waiters, and did not cover musicians until about two years later It was believed, and evidently with some accuracy, that the Joint Board of Waiters and Chefs was Communist-dominated. The court found untenable the argument made by Friedman that employees have a right to pursue employment without interference from the police commissioner The evil of which Pecora J.

Chevigny explains: Neither the news reports nor the cases reveal a single instance during the entire controversy when anyone, whether from the police or any other source, claimed that a musician, or any entertainer, was denied a card because he had committed a crime in or even close to a club. The cards were invariably denied because of a past criminal record, often for narcotics offenses. The fact that cooks and dishwashers were deemed to no longer require regulation at the same time musicians were added Cohen 19; see also Hoefer 6 supports this claim. It stated: Intimacy is encouraged by the crowding, the drinking, the music and the dim lights.

In such surroundings, a shady character can make hay while the sun is not shining. Because of these special circumstances, it is fair to put cabarets and dance halls in a class by themselves for regulatory Downloaded by [University of Victoria] at 10 October purposes. Others, such as Billie Holiday see below , were rumoured to have had their appeals continually denied because of their political commitment to desegregation Gomez , n.

When applying for a card, applicants were required to answer the following question: 7. This discretionary power was of great con- sequence to jazz musicians and other cabaret performers. The government argued that prohibition under federal law was necessary because marijuana was so dangerous. Interestingly, the campaign to criminalise marijuana coincided with proposed budget cuts to all federal agencies, including the Federal Commission of Narcotic Drugs. Anslinger, lead the campaign to criminalise marijuana in order to ensure his Department and his job was not eliminated in the cut- backs Clarke It also meant that, when heroin hit town shortly after this criminalization, it was welcomed with open arms People in the jazz scene, espe- cially black musicians and singers, worked in a society largely controlled by Downloaded by [University of Victoria] at 10 October people who were extremely prejudiced against them.

Getting high helped black performers cope with racism; insults could be effectively ignored when on heroin, argues Clarke —6. Why did it happen? The style of life moved so fast, and cats were struggling to keep up. It was wartime, everybody was uptight. They probably wanted something to take their minds off all the killing and dying and the cares of this world. Jazz musicians, in turn, became the target of much public attention and police surveillance. Due to their race and notoriety, jazz musicians were far more likely to be arrested than others in NYC for narco- tics offences and these arrests effectively barred them from obtaining a cabaret card and thus from working in any NYC club Nicholson Becoming a Muslim during segregation in the United States thus carried a bonus: [It was] a ticket out of the racial caste system of America.

Upon adopting a Moslem name, one was received by whites as an Arab, and one could be served in whites-only restaurants. Gillespie, himself, did not convert to Islam, though he considered doing so. WC is a toilet in Europe. Upon her release, Holiday was denied a cabaret card when she returned to NYC in Blackburn Without her cabaret card, Holiday had limited options.

When offered a job by John Levy, co-manager of the Ebony Club later to become Birdland , with the promise that action would not be taken Downloaded by [University of Victoria] at 10 October against her by the police, Holiday had little choice but to take Levy up on his offer Chilton Holiday sang at the club undisturbed by the police25 and with great success Without a cabaret card, Holiday had no choice but to go back on the road in order to make enough money Blackburn She got a gig in San Francisco, California where, in , federal narcotics agents arrested her for possession Nicholson During the time between this arrest and her trial,26 Holiday returned to NYC.

While back east, she was deliv- ered another huge blow. According to Down Beat 6 May magazine, at her appeal against the card ruling, Justice Aaron Levy commended the police department for refusing to issue Holiday a card see also Chilton ; Nicholson ; Blackburn Woideck 43 , however, argues that Parker was arrested at least once for possession of drugs and received a three-month suspended sentence.

His last public appearance was on 4 March — at Birdland, the club named in his honour Eight days later, he was dead. Following the arrest, Powell was committed to a state psychiatric hospital, where he was neglected and ignored for months by hospital authorities. Upon his release from the hospital, Powell applied for his cabaret card, but was denied because of two previous convictions.

Melbourne Law School

The deputy police commis- sioner, who Morrison knew, granted a temporary card, but only for a limited engagement at the world-famous jazz club Birdland xiii—xiv. Johnson, as plaintiffs According to Chevigny: The facts presented sobering examples of the arbitrariness of the regula- tions.


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Once convicted of a marijuana offense, Rubenstein had been twice denied a card after police hearings. From an artistic point of view, the denial to J. Johnson was even more dismaying. The indispensable master of the modern-jazz trombone, without whose work the City was much poorer artistically, Johnson had been once caught with a hypodermic thirteen years earlier. The police admitted this to be the case in their answer.

In November , an incident occurred from which the cabaret-card system never really recovered. Buckley it seems had been convicted of a drunk charge in Reno, Nevada 19 years prior and was arrested in Indianapolis, Indiana 17 years earlier for assault and possession of marijuana. He had neglected to list these arrests and conviction on his cabaret-card application, arguing later that he thought he only had to list his convictions, not his arrests, and that he had forgotten about his conviction as it was so long ago. Lent on 3 November On Saturday 12 November , two days before the scheduled hearing, Buckley died tragically of a stroke brought on by malnutrition and a kidney ailment precipitated allegedly by his inability to afford food for the two days prior to his death Cohen xvi, Cohen made certain that only three character witnesses would be available to testify at this hearing so as not to anger Deputy Chief Inspector Lent.

Police Commissioner Kennedy immediately took charge of the hearing, ordering on record the names of everyone present. He argued that Lent should conduct the investigation because he was familiar with the facts Lent was about to make a decision when he was passed a note by Kennedy. When Cohen demanded to see the note, Kennedy deliberately tore it up A battle of words ensued, all captured by the attending press.

That night, newscasts were extended by an extra 15 minutes to report on this event The raids, staged on the weekend before Thanksgiving , produced violations; the police issued 20 court summonses The punishment for any violation was a four-day suspension, which meant shutting down the violating clubs during the holiday weekend 11; see also Perlmutter a: Kennedy Simone v. Kennedy Relying on the decision of Friedman v. In his report to Governor Rockefeller, Mayor Wagner denied that there was any evidence of police corruption in the issuance of cabaret cards to entertainers and other Downloaded by [University of Victoria] at 10 October employees.

In light of these recommendations, identity cards were made permanent in and the administration of the system was transferred back to the Department of Licenses, away from the NYPD Sibley 1. The License Commissioner Joel J.


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That somehow broke the spell of fear of wicked comedians and musicians; the rest was simple. An executive session of this committee followed the hearing to discuss the possibility of reporting the bill out for early action by the NYC Council The committee voted unanimously to recommend its adoption by the council. Adams, W. Adderley, J. Adleman, D. Allen, C. Allsop K. Alterhaug, B. Anderson, J. Anderson, S.

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Davis, M. Demsey, D. Kirchner ed. Dennis, J. Derrida, J. Graff ed. Caws and I. Lorenz, in For Nelson Mandela, J. Derrida and M. Tlili eds , New York: Seaver Books, 13— Catherine Porter, in L. Waters and W. Kamuf, New York: Routledge. Derrida, Points … Interviews, —, E. Weber ed. Derrida, Points … Interviews, —, trans. Peggy Kamuf, E. Wills, Chicago: University of Chicago Press. Derrida, Politics of Friendship, trans. Collins, London: Verso, — Collins, London: Verso, 1— Collins, London: Verso. Dooley and R. Derrida, Writing and Difference, trans A.